Gwamaka s/o Mwamsojo vs Republic (Criminal Appeal No. 8 OF 1998) [1998] TZHC 2480 (18 September 1998)

Mo:rrr, J. IN :HE ':UGH COUR'r OF 1 .rANZANlA. AT i'1BEYA CRJJnNAL APPEAL NOo 8 OF 1998 (Crig:inal from Mbeya District Court Cr_iminal Case Ifo" 675 of 1996 Before: LAo i-1tiginjola - District Magistrate) GWAMAKA. s/o MWAMS0J0 U II C O ·0 0 0 0 o O o ti 0 APF:LLANT Versus THE REPUBLIC JUTh.'rMENT The ap:pellantj Gwamaka s/o Mwamso,jo 5 was indicted before the district court of Hbeya for J:11eft, contrary to section 265 of the Penal Code. He was convicted as charged and sentenced.to five years imprisonment. The conviction and sentence aggr;i.evecl him, hence this appeal, ·which was ::trgued before me _by the appellant hLself in the presence of the learned state attoney for the Ilepublic, Mr< Mulokozi, who resisted it. On 14.8.96 at about 8.00 AM Paulina w/o Mwakapila (:i?W3) w-en to the house of her neighbours Salome s/o Ninza, who did not testhy. That date and time '.,,as according to the charge sheet. PW3 said it was on·a day she could not recall in Auguat 1996. And 0'.1G l-'lbaki. s/o idson (PW1) said it was on A. t the houi::;e PW3 found Salome w:i.th a man she hact not seen before. ' . ,, At t1A trial P1:"13 said she was not certain that it wa,s the appellant • .Sa:l.ome then told. PW3 that there was sugar for sale at the house of Mrs. Mwamsojiwho had sent that man to notify her. .Salome went rm to tell P'd3 that the sugar could be obt.:d.ned on credito At that stace Hbaki s/o ?idso:ri (P. 1 :'1.1) arrived there. Salornc>. instructed PW1 to take a bicycle and. accompany that man to the house of Mrso Mwamsojo to collect two cartoons of sugar for her and one cartoo:1 for PWJo PW1 said the man was the appeJJ.ant. He al.so said that Salome was his , mother and that the bicycle was her property. Dut PW3 said HJ1 was a neighbour called by Salo1!1e and arrived .there with the, bicycle. It v1ould appear that Hrs. Mwa.msojo was staying in the neig;.1bourhoi)Ei 1 •. anp._ that. ,she was well known to PW3 . . and Salome. . OOOQOW/tOO,•/ 2

2 At the house of Salome the appellant entered into the hou:3e leaving PW1 outside with the bicycle. After some time the appellant got out of the house and told PW1 that the sugar was being packed insideo Ee asked PW1· to give him and he disappeared with it, He never returned and the bicycle has not been recovered todate. After sometime PW1 entered the house and askP.d Mrs. Mwamsojo about the appellant. She replied she did not know him and she had not seen him. PW1 and Mrs. Mwamsojo reported the ineicte::'t fo B..J..ome and PW3. Mrs. I1wamsojo did not testify. On 4.9.96 at midday a relative of Salome, Eliza f}../~ Niza 9 who did not ' testify 9 re::-iorted the incident b .pc George (PW2) at Mbeya central police- .I station. On that day PW2 recorded th~ statement of Salome (3xt P1)' who died before the ·tr·ial commenced.· Her statement was tendered in evidence by PW2 under section 34B of the Evidence Act 19670 The appellant denied any involvement L"l the affair in his sworn defe.nce at the trial. He denied to have seen or met ,Salome 9 PW3 and ?-J1 the. day of the incident. He claimed he was on .30.8. 96 held by some young persons as he was walking along a road in towl'. who alleged that he had stolen a bicycle. They took him to a }'OJ.ice pri,st in town; He was subsequently charged with · T1fle trial court founded the conviction of the appellant on the statement of Salome (Ext P 1 ) · as . ;supported by the evidence of PW1 and PW3. But there are matters obtaining in this case which rendered que,stinnable the aJ.J.egatioJ .( that the offence was ·committed and that it was the appellant who committed iL !-''i_r_s_t_l;r.~ and with respect to the learned state attorney 9 it does not occur to me that the statement of Salome (Ext P1) was pro1)erly admitted in evidenceo The proc-·edure set out under section .34B of the Jvidence Act was not observed. ,Sectim 34B of· the Act allows producti:,n of a statement of a witness who for some reasons cannot be called to the court to testify orally. But section. 34B(2) outlines six conditions, Pare.graphs (a) to (f), for admitting a t t t d t , t t · m1"n~ •eond1· tJ··.r.i11.- are C'.';,,.,,ulative. None of the s a emen un er na sec ion. ··"' _ ·'-' -u." _ ••••.• / 3

3 • six paragraphs can stand on its own~ fuch and every condition set out must be complied with fully. If one condition is violated then a statement is inadmi- ssible. In this case 9 the.statement (:Ext P1) violated. paragraphs (c), (d) and (e) of section 34B(2) of the Act. The statement (Ext P1) 9 therefore, was inadmissible. Secondly, once the statement of Salome is discountedi t}ie evidence as . ·- -·-· .. _ .. ,,._ ... to what Salu;;1.e had told PW3 and F:!1 as re:;iorted by the two witnesses uust e.s well be discounted on the grmmd that it was hearsay evidence and. inadmissible. The evidence as tc what Bliza o/o Niza~ who did not testify, bld P\12 9 as reported by PW2, was inadmissible on the same ground of being hearsay evidence. Also hearsay evidence and inadrnis.sible would be tbe evidence i:.,,s to what 1,:rs. Hwamso;jo said of the a.ppellant as reported by P\41·~ In law, evidence of a stateinent made to a wi tnes,s by a person who is himself not called as a witness is hearsay and inadmissible when 9 as here, the object of the evidence is to establish the truth .. of what is contained in the statement • . Thirdly, Pv.13 did not identify the ai;ipellanL There ·was only th.e evidence of PW1. It was, as rightly :P01ted out by the learned. state attorney? a question of credibility. It d:id not occur to me that PH1 v.rc;-s a reliable witnesso Tb.e question of credibility of a witness on the basis of demeanour is the monopoly of the trial court. However credibility is not assessed entirely on demeanour. also be l<ealiability of a witness co.n /. established by considering his testimony in the context of the whole evidence. There could be self--contradictions or conflicts between one witness and another or others. In this case, there were, as pointed c,ut 1 conf1icts between the evidence of P'11 and PW3. These conflicts, in my view, were eerio1s and material 9 and they detracted from the credibility .)f PW1 There war3, fo addition, the allege.tion of PW1 that the appellant tool,;: the bicycle to collect plastic containers for milk. How did the question of milk arise in the event that they had? as alleged, truly gone there for sue;ar' Ar,d another thing~ strange as it might look, it did not feature anywhere in the evidence that PW1, from who,se hands the bicycle was allegedly stolen 1 rer;orted the theft at the police station 1 let a1one •••••• o; • ~/ 1 +

4 promtly so. For an the foTegoing reasons, I am satisfied that evidence that the offence v1as committed and that the appe1lant was its perpetrator was scanty and w1reliable. The guilt of the appellant was not dem01istrated to the required extent. I accordingly a1101-1 the a:9peal, quash the conviction, set aside the sentence, and hereby o:cder the immediate release of the apj)ellant, Gwamaka s/o Mwamsojo~ from prison unless otherwise lawfully held. / ·.! BoP. MOSHI AT MB3YA. 18 September 1998. For Appellant: Present. Frir Republic: Hr. Nangela, .S.l(. ., t I